Ravi Kumar Sharma & Ors. vs Union Of India & Ors.
2008 Latest Caselaw 1195 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI


+                          WP (C) No.6716 of 2007


%                                   Date of decision: 31.07.2008


RAVI KUMAR SHARMA & ORS.                      ...PETITIONER
                   Through:             Ms. Jyoti Singh, Advocate.

                                   Versus

UNION OF INDIA & ORS.                         ...RESPONDENTS
                           Through:     Ms. Anjana Gosain, Advocate
                                        with Major S.S. Pandey.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?             No

2.        To be referred to Reporter or not?              No

3.        Whether the judgment should be                  No
          reported in the Digest?

SANJAY KISHAN KAUL, J. (Oral)

1. The petitioners were enrolled in the Indian Army in the

Bengal Engineering Group in 1996-1999.

2. The respondents introduced a new trade of Surveyor

Automated Cartographer in 1993 and the selection to the

post was through direct recruitment as per Army

instructions 23/90. The necessary qualifications for the said

category was incorporated in the appendix to the said Army

instruction. The soldiers were to be placed in Class III of the

trade and given the rank of Havildar and on completion of

course of training of two (2) years they were to be placed in

Class II. The persons so recruited were to be on probation

for a period of two (2) years and on successful completion

of probation the recruit was to be placed in Class I of the

trade. The further promotion to the rank of Naib Subedar

was permissible only after completing the total service of

five (5) years.

3. The respondents found that there was a deficiency in the

number of candidates coming for direct recruitment to this

newly created trade and to meet the requirement the Army

Headquarters accorded sanction for remustering of

personnel from those who were already serving in other

Arms/Services having requisite qualification as per AI 23/90.

This resulted in the entry from two streams, i.e. through

direct recruitment from civil in the rank of Havildar; and

remustering from other Arms/Services.

4. The policy provided an exception to the criteria in the case

of promotion of remustering category of DHM of Artillery/AD

Artillery, HMT of EME as well as directly enrolled Havildars.

In cases of directly enrolled Havildars the performance level

was fixed at four (4) reports in the rank of Havildar out of

which two should be above average as against the

requirement of five (5) reports for the remustered category.

5. The remustering took place of three batches in the period

1999 to 2000 and sixteen (16) Sepoys/Naiks and fourty-one

(41) Havildars are stated to have been remustered from

other Arms/Services. All these Havildars were promoted as

Naib Subedars after fulfilling the ACR criteria and it is

stated that there was no conflict of interest between

remustered persons and the direct entry Havildars from the

civil side at that time.

6. The controversy giving rise to the present petition has

arisen when the 4th and 5th batches were remustered in the

period 2001 to 2003. The remustered individuals were

senior to the direct entry Havildars as they had already

served the Army for some years before remustering as they

had become Havildars earlier than the direct entry

personnel. Despite this the respondents started giving

preferential treatment to the direct entry personnel

inasmuch as for the promotion to the post of Naib Subedar

the remustered individuals were required to have five

reports while the direct entry Havildars became eligible by

only four reports. The consequence of this was that the

direct entry personnel became eligible for consideration to

the post of Naib Subedar one year prior to the remustered

individuals as they had to earn one less report in terms of

an exception clause in the policy letter dated 10.10.1997.

The petitioners 1 to 3 in the present case were remustered

in the fourth batch while petitioners 4 to 6 were remustered

in the fifth batch and attended the technical trade training

along with direct entry Havildars. They were senior to the

direct entry Havildars.

7. The anomaly created received the attention of the

respondents in terms of a letter dated 16.10.2002 which

pointed out that in promotion of Havildars to Naib Subedars

the difference in the number of reports to be earned was

creating the said anomaly. The Record Office was, thus,

asked for its response. The Record Office vide its

communication dated 25.11.2002 examined the anomaly

and found that uniformity and standardization of rules in

regard to assessment of the seniority of the direct entry

and remustered persons was necessary and made the

following suggestions.

"4. With a view of achieve uniformity and standardization of rules in regard to assessment of seniority of direct entry SAC and remustered pers, the following are suggested:-

(a) Seniority in respect of pers who are remustered from other trades to SAC will be fixed from the date of remustering into SAC irrespective of the rank they are holding for promotion to the rank of Nb Sub and those who are enrolled direct SAC will be fixed from the date of promotion to the rank of Hav i.e. on completion of trg.

(b) As regards ACR for promotion to the rank of Nb Sub, minimum three ACRs earned in the present trade will be taken into account. Out of three, two ACRs should be 'Above Average' and one should be 'High Average'.

(c) ACRs earned in the present category will only be counted in the case of remustered pers."

8. It was, however, further observed that the views of the

specialized Units may also be obtained.

9. The Chief Record Officer and Commanding Officer in their

letter dated 24.1.2007, however, did not favour the removal

of this anomaly and observed as under:

"1. Please ref to your DO letter Nos.123/36/EI and 123/37/EI both dt 15 Jan 2007.

2. The case for relaxation in ACR in respect of the Havs/SAC as mentioned in your ibid DO letter have been examined in detail. The NCOs were attested on 14 Sep 2002. Accordingly, they were promoted on the same date to the rank of Hav. Moreover, they have not been superseded by any Hav SAC and will get their promotion at their own seniority. They are also not meeting ACR criteria as per Para 6 () to (d) of AHQ AG's Branch letter No.B/33513/AG/PS2 (c) dt 10 Oct 97.

3. It is further clarified that indl who are direct entry Havs are required to earn 04 appropriate ACRs and 05 appropriate ACRs in case of remustered Havs as per above quoted AHQ letter.

4. Keeping in view of the above, no relaxation for ACR is required to be given to them as the NCOs will be considered for detailment in 'J' cadre after earning appropriate ACRs for the year 2007."

(emphasis supplied)

10. The petitioners who were waiting for their departmental

redressal were, thus, compelled to approach this Court by

filing the present writ petition whereby they have sought

quashing of the policy letter dated 10.10.1997 and

10.9.2004 which lay down different ACR criteria for the

remustered Havildars like the petitioners and the direct

entry Havildars who were in the same batch on grounds of

discrimination and for amendment of the policy to lay down

that the ACR criteria for promotion as Naib Subedar should

also bring in uniformity between the two categories.

11. The parties were heard at length on 13.5.2008 when it

emerged from the aforesaid as well as the submissions of

the learned counsels for the parties that the grievance of

the petitioners was that while on the one hand the

remustered persons like the petitioner in the trade of

Surveyor Automatic Cartographer had to earn at least five

ACRs, the direct recruits had to earn only four ACRs for

further promotion as Naib Subedars. This problem had not

arisen for the first three batches as there were only

remustered Havildars but in the fourth and fifth batches the

second stream of direct recruits also started which has

resulted in the anomaly. The result of the policy decision of

the respondents is that the petitioners would come up for

consideration later than the direct recruits though they are

in the same batch and thus their consideration for the post

of Naib Subedar would be on a later date. At this stage it

may be observed that the counter affidavit makes it clear

that insofar as the inter se seniority of the remustered

Havildars is concerned it has been specifically provided that

if someone is senior and has not earned five ACRs, on

attaining five ACRs such a person would be considered and

would be assigned a notional seniority in the cadre of Naib

Subedar without any monetary benefits. There was,

however, no explanation about the inter se seniority

between the two categories of direct recruits and

remustered Havildars.

12. A controversy also arose about whether there was a

common seniority list of remustered Havildars and direct

recruits and thereafter also a common seniority list of

persons recruited as Naib Subedars. It was pleaded on

behalf of the respondents, on instructions, that there were

two separate seniority lists of the two categories. It is in

view thereof that the records were asked for and the

respondents were directed to specifically state as to

whether the concept of notional seniority assigned inter se

the remustered Havildars when being promoted as Naib

Subedars was equally applicable to the inter se seniority

between the two groups.

13. Learned counsel for the respondents obtained instructions

and it transpired that, in fact, there was a common seniority

list at both the stages. The natural consequence of this

common seniority list was that in these seniority lists the

remustered Havildars were senior to the direct recruits but

the differentiation in the number of ACRs to be earned by

the two categories was creating an anomaly in terms of the

number of years they had to serve to earn those ACRs for

promotion as Naib Subedars. This was contrary to all

principles of equity and parity and was directly in conflict

with Article 14 of the Constitution of India. In a common

seniority list the two streams cannot be put to different

criterion for common promotion so as to deprive one

stream of promotion at the same stage as the other stream.

14. In order to resolve this controversy and especially taking

into consideration the fact that there was further no more

remustering taking place, learned counsels for the parties

proposed that a onetime exception be provided to the

petitioners in respect of one ACR in the rank while

considering them for the rank of Naib Subedar at par with

the direct recruits would remove the anomaly. This is so

since these persons have to considered for the post of Naib

Subedar and there was no further remustering taking place.

This would have restored the original seniority for the

purpose of consideration of further promotion to Subedar

which was due at the end of the period of three years of

service as Naib Subedars. Learned counsel for the

respondents, in fact, did not seriously dispute that this

could be a plausible solution but naturally wanted to take

instructions.

15. The endeavour of the learned counsel for the respondents

to find a reasonable solution in accordance with law has,

however, not borne fruit and the respondents have decided

to stick to a stand that the petitioners are not entitled to

the benefit they are claiming in the petition.

16. We note with regret the aforesaid stand of the respondents

is for the reason that they seek to justify a policy of

discrimination even after it was detected in the department

and a remedy was sought. A second stage arose when

even they were counselled legally that the removal of

anomaly is necessary to avoid the stigma of discrimination

in the said policy. We are, thus, left with no option but to

issue appropriate directions.

17. In view of the facts set out hereinabove we are of the

unequivocal view that such a discrimination between the

two streams, once streams merged into a common seniority

list, cannot be permitted which delays their further

promotion. The discrepancy in the number of ACRs to be

earned implies that the remustered category of personnel

have to put in an extra year of service than the direct

recruits to be promoted as Naib Subedars and consequently

their further promotion is also affected since they would not

have earned the requisite number of ACRs/period of service

as Naib Subedars. There is no justification whatsoever

coming forth for this anomaly which has been pointed out.

The remustered category of personnel though senior in the

seniority list of Havildars get their chance of promotion

later and, thus, their junior who are direct recruits are

promoted earlier.

18. The respondents in their wisdom have, in fact, even

provided for removal of a possible anomaly which arises

where two persons in the remustered category may be

affected inasmuch as if one of them is senior and has not

earned an ACR he would not get the chance of further

promotion till he earns that ACR. In such a situation a

notional seniority is given when the person is promoted to

the post of Naib Subedar which implies that such a person

attains his original seniority as existed in his post prior to

promotion as a Naib Subedar yet simultaneously the

respondents are unwilling to remove the anomaly between

the two categories.

19. A writ of mandamus is issued quashing the policy decision

of the respondents whereby they seek to discriminate

between the number of ACRs to be earned from the two

streams of direct recruits and remustered personnel for

promotion to the post of Naib Subedar.

20. The result would be that the petitioners are required to be

considered for promotion as Naib Subedar on the basis of

having earned the same number of ACRs as the direct

recruits and on their being so promoted would be entitled

to their seniority in the post of Naib Subedar as per the

seniority list of Havildars (the original cadre). This would

naturally entail that the said seniority would also prevail for

promotion from the post of Naib Subedar to the Subedar

when such an eventuality arises. The common seniority list

of the Naib Subedar to be drawn accordingly would be the

basis for promotion to the post of Subedar and thus both

streams of personnel would be simultaneously considered

for the said post of Subedar irrespective of the number of

ACRs as Naib Subedar.

21. The petition is accordingly allowed.

SANJAY KISHAN KAUL, J.

JULY 31, 2008                                MOOL CHAND GARG, J.
b'nesh